J-S69038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NATIONAL CITY BANK IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AGNES A. MANU AND STEVE A. 

FREMPONG

Appellants No. 702 EDA 2014

Appeal from the Order Entered January 16, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 3849 February Term, 2010

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JANUARY 16, 2015

Appellants, Agnes A. Manu (“Manu”) and Steve A. Frempong 

(“Frempong”, and collectively with Manu, “Appellants”), appeal pro se from 

the January 16 2014 order granting summary judgment in favor of Appellee, 

National City Bank, and ejecting Appellants from a single-family home 

located at 7000 Woodbine Avenue, Philadelphia, Pennsylvania (the 

“Property”). We affirm. 

Manu and Frempong are husband and wife, and both reside at the 

Property. Manu acquired the Property in 1988, and in 2001 she obtained a 

$250,000 mortgage loan secured by the Property. The original mortgagee 

assigned its interest in the mortgage to Appellee. Manu is the sole record 

owner of the Property. Frempong was not a party to the mortgage, nor is he 
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named on the deed. Manu defaulted on the mortgage in 2006, failing to 

make any payments after March 1, 2006. Appellee commenced a 

foreclosure action on June 22, 2006 and the trial court entered summary 

judgment in its favor on May 4, 2007. This Court quashed Appellants’ 

appeal and the Supreme Court denied allowance of appeal.1 Appellee was 

the successful bidder at an October 6, 2009 sheriff’s sale, and the deed was 

recorded on January 5, 2010. 

Despite the foregoing, Appellants have refused to vacate the Property. 

Appellee therefore commenced this action in ejectment on February 25, 

2010. Appellants filed preliminary objections on September 20, 2010. The 

trial court overruled those preliminary objections on November 9, 2010, and 

Appellants filed an interlocutory appeal from that order. Appellants 

discontinued that appeal on October 31, 2011. Subsequently, Appellants 

filed in the trial court a petition to strike their discontinuance of the 

interlocutory appeal, which the trial court denied on December 14, 2011. 

Appellants appealed the December 14, 2011 order, and this Court quashed 

that appeal on March 13, 2012. 

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1

 Nat’l City v. Manu, 987 A.2d 833 (Pa. Super. 2009) (unpublished 

memorandum), appeal denied, 998 A.2d 961 (Pa. 2010). Manu also 

challenged the foreclosure in federal court, alleging violations of various 

federal statutes. The federal action was unsuccessful. Manu v. Nat’l City 

Bank of Indiana, 471 F. App’x 101 (3d Cir. 2012) (“Manu II”). The

federal opinion is non-precedential, and we cite it only because it is relevant 

to the procedural history of the case on appeal. 
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On July 9, 2012, Appellants filed a motion to strike the May 7, 2007 

order granting summary judgment in favor of Appellee in the mortgage 

foreclosure action. The trial court denied that motion on August 10, 2012, 

and this Court dismissed an appeal from that order on February 25, 2013. 

Finally, on November 1, 2012, Appellants filed an answer, new matter, 

and counterclaims to Appellee’s complaint in ejectment. Appellants 

amended their answer, new matter, and counterclaims on December 10, 

2012, after Appellee filed preliminary objections to Appellants’ first answer. 

On January 2, 2013, Appellee filed preliminary objections to the amended 

answer. By order of January 28, 2013, the trial court sustained Appellee’s 

preliminary objections to Appellants’ answer, new matter, and 

counterclaims. The trial court permitted an amended answer, which 

Appellants filed on March 4, 2013. Also on that date, Appellants appealed 

from the order sustaining Appellee’s preliminary objections. This Court 

quashed that appeal on June 6, 2013. 

On December 4, 2013, Appellee filed a motion for summary judgment 

on its complaint in ejectment. Appellants answered that motion on January 

6, 2014, alleging Appellee’s title to the Property is void because the trial 

court lacked subject matter and personal jurisdiction in the underlying 

foreclosure action. Specifically, Appellants’ alleged Appellee failed to effect 

proper service of process in the underlying foreclosure action. The trial 
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court granted Appellee’s summary judgment motion on January 16, 2014. 

That order is presently on appeal. 

Appellants raise three issues for our review: 

A. Whether [Appellee] was entitled to summary judgment for 

possession in this ejectment action when the underlying 

foreclosure judgment was entered without requisite 

jurisdiction due to Appellee’s failure to join indispensable 

party [Frempong] who was in possession of the [Property] at 

all relevant times and thus rendering [the] Sheriff’s Deed void 

ab initio and a nullity? 

B. Whether the Court of Common Pleas of Philadelphia County 

grossly erred and abused its discretion in granting Appellee’s 

motion for summary judgment as Appellee was not entitled to 

said summary judgment for possession in this ejectment 

action where Appellants raised triable issues of fact as to the 

validity of Appellee’s alleged title to deed of the Property and 

where Appellee’s right was not clear and free from doubt.

C. Whether the lower court grossly erred and abused its 

discretion in its denial of Appellants’ preliminary objections 

and other pre-trial motions relating to lack of service as 

original process and failure to join indispensable party 

[Frempong], thus depriving the court of at least personal 

jurisdiction on him and subject matter jurisdiction in this 

case. 

Appellants’ Brief at 2-3. 

We will consider Appellants’ arguments together, as each one asserts 

Appellee failed to obtain valid title to the Property in the underlying 

mortgage foreclosure action. 

First, we note our standard for reviewing entry of summary judgment: 

A reviewing court may disturb the order of the trial court 

only where it is established that the court committed an error of 

law or abused its discretion. As with all questions of law, our 

review is plenary. 
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In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a 

non[-]moving party to adduce sufficient evidence on an issue 

essential to his case and on which it bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law. Lastly, we will view the record in the light most 

favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014). 

“Ejectment is an action filed by a plaintiff who does not possess the 

land but has the right to possess it, against a defendant who has actual 

possession.” Billig v. Skvarla, 853 A.2d 1042, 1049 (Pa. Super. 2004). 

“The purpose of an ejectment action as opposed to quiet title is not to 

determine the relative and respective rights of all potential title holders, but 

rather the immediate rights between plaintiff and defendant involved in that 

particular litigation.” Id. at 1049-50. “The crux of an ejectment action, 

therefore, rests with the plaintiffs’ ability to identify, by a preponderance of 

the evidence, [. . .] the boundaries of a parcel of land to which they are out 

of possession but for which they maintain paramount title.” Id. at 1050-51 

(citations omitted). 

The facts of record establish beyond dispute that Appellee has 

paramount title to the Property but is not in possession because Appellants 
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have refused to leave. Appellee was the successful bidder at the sheriff’s 

sale of the Property and the sheriff’s deed has been recorded. Appellants do 

not dispute these controlling facts. Rather, Appellants challenge the validity 

of the final judgment and the sheriff’s sale in the underlying foreclosure 

action. As noted above, Appellee prevailed in the mortgage foreclosure 

action and Manu exhausted her appeals. 

Nonetheless, Appellants argue the law permits a collateral attack on 

the foreclosure judgment under the circumstances of this case. They rely on 

Dime Sav. Bank v. Greene, 813 A.2d 893 (Pa. Super. 2002). In Greene, 

as in this case, the mortgagor’s son raised the invalidity of an underlying 

foreclosure and sheriff’s sale as a defense in an ejectment action. 

Specifically, the mortgagor’s son asserted the sheriff’s sale was void due to 

the automatic stay attendant to the mortgagor’s bankruptcy. Id. at 895. 

This Court rejected the argument based on lack of standing, but noted the 

following: 

[A]n attack on a sheriff’s sale usually cannot be made in a 

collateral proceeding. An ejectment action is a proceeding 

collateral to that under which the land was sold. Thus, where it 

is claimed that the underlying default judgment is merely 

voidable, that claim will not be entertained because such a 

judgment cannot be reached collaterally. However, in an 

ejectment action it may be alleged that the judgment is void. A 

void decree can be attacked at any time. Where a judgment is 

void, the sheriff’s sale which follows is a nullity. A judgment is 

void when the court had no jurisdiction over the parties, 

or the subject matter, or the court had no power or 

authority to render the particular judgment. A judgment 

which is void cannot support an ejectment action and may be 

asserted as a defense in the ejectment proceeding.
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Id. (citations omitted) (emphasis added). In other words, the law permits 

the defendant in an ejectment action to challenge the trial court’s jurisdiction 

in an underlying foreclosure action. As we will explain, however, Appellants 

cannot avail themselves of that rule in this case. 

In Meritor Mortg. Corp. v. Henderson, 617 A.2d 1323 (Pa. Super. 

1992), the mortgagor died and her son began living in her house but failed 

to continue making mortgage payments. Id. at 1324. The mortgagee 

commenced a foreclosure action, but failed to post notice of the proceeding 

at the property or serve notice on the son, who was the party in possession. 

Id. at 1324-25. This Court held the mortgagee failed to comply with Rule 

410(b)(1) of the Pennsylvania Rules of Civil Procedure. That Rule provides: 

(b)(1) If in an action involving an interest in real property the 

relief sought is possession or mortgage foreclosure, original 

process also shall be served upon any person not named as a 

party who is found in possession of the property. The sheriff 

shall note the service in the return.

Pa.R.C.P. 410(b)(1).2 Since the mortgagee failed to give adequate notice of 

the foreclosure proceeding to the party in possession of the home, the trial 

court had no jurisdiction to enter judgment. Henderson, 617 A.2d at 1326. 

The Henderson Court therefore vacated entry of summary judgment in 

favor of the mortgagee in the mortgagee’s ejectment action. Id. 

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2

 Rule 410 was adopted in 1985 and has not been amended. 
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Instantly, Appellants’ reliance on Henderson and Rule 410(b)(1) is 

misplaced. They argue that the trial court lacked subject matter jurisdiction 

in the underlying foreclosure action because Appellee failed to name 

Frempong as a party. Rule 410(b)(1), by its express terms, merely governs 

service of process. It requires service of process on a party found in 

possession of the real property at issue, but does not require that party to 

be named a defendant in the foreclosure action. Appellants do not argue 

that Appellee failed to serve process, and in any event the foreclosure 

complaint indicates that process was served at 7000 Woodbine Avenue. 

Appellants also argue Appellee was required to name Frempong as a 

defendant pursuant to Pa.R.C.P. 1144(a)(2), because Frempong was Manu’s 

personal representative. Rule 1144(a)(2) provides: “The plaintiff shall 

name as defendants [. . .] (2) the personal representative, heir or devisee of 

a deceased mortgagor[.]” Pa.R.C.P. 1144(a)(2) (emphasis added). Rule 

1144(a)(2) applied in Henderson, as the mortgagor was deceased and the 

mortgagee was obligated to name a representative or heir as a party. 

Henderson, 617 A.2d at 1325. Here, however, Rule 1144(a)(2) has no 

application because Manu is living. Appellants’ brief brazenly misquotes the 

Rule, omitting, among other things, the word “deceased”: “Plaintiff shall 

name as defendants the personal representative of mortgagor.” Appellants’ 

Brief at 11. We strongly disapprove of Appellants’ misrepresentation of the 

applicable law. 
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Appellants’ argument that the judgment and sheriff’s sale are void is 

entirely lacking in merit. As noted above, Frempong was not named in the 

mortgage documents or on the deed, and he has no discernable legal 

interest in the Property. Appellants fail to identify any law obligating 

Appellee to name Frempong as a defendant.3 

We observe in closing that Frempong has a history of engaging in 

dilatory tactics similar to those Appellants have engaged in here. In First 

Union Mortgage Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999), we 

described the case as follows: “This case, involving an otherwise 

unremarkable mortgage foreclosure action, presents a cautionary tale 

regarding outrageous abuse of our legal system in order to delay collection 

of a debt.” Id. at 329. After defaulting on his mortgage, Frempong on 

several occasions removed the foreclosure action to federal court, alleging, 

among other things, defective service. Id. at 329-32. Frempong also filed 

for bankruptcy protection, and was eventually forbidden by the bankruptcy 

court from filing any further bankruptcy actions within one year of the order 

dismissing his bankruptcy action. Id. at 331-32. This Court held the trial 

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3

 Appellants also argue that Appellee was not the proper plaintiff, as the 

assignment of the mortgage from Appellee’s predecessor in interest was 

incomplete as of the filing of the complaint in foreclosure. Appellants’ Brief 

at 14-15. Assuming arguendo that Appellants preserved this issue in their 

statement of questions involved, it does not merit relief. Appellants’ 

argument addresses Appellee’s standing to bring the foreclosure action, not 

the trial court’s subject matter jurisdiction over the action. See JP Morgan 

Chase Bank, NA v. Murray, 63 A.2d 1258, 1262-63 (Pa. Super. 2013). 
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court did not abuse its discretion in opening a final judgment in order to 

permit First Union to establish the amount of damages resulting from 

Frempong’s dilatory tactics: 

Beyond the shadow of a doubt, equity demanded at least 

the opening of the judgment in this extraordinary case of abuse 

of our legal system. The delay and consequent expense borne 

by First Union were entirely chargeable to Frempong both due to 

his dilatory tactics and also due to the terms of the mortgage to 

which he had agreed. By the time the trial court had vacated its 

prior summary judgment, the amount stated in its original order 

no longer in any way reflected the costs to First Union of 

collecting the money owed to it, although that had been the 

original intent of the court in entering the order. Frempong’s 

actions throughout this case have demonstrated utter contempt 

for the law. In light of his outrageous conduct, we are more 

than satisfied that the trial court neither erred nor abused its 

discretion in taking the relatively mild step of vacating its prior 

order and scheduling a hearing to assess First Union’s actual 

damages.

Id. at 334-35.4 

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4

 Likewise, in one of the federal lawsuits Manu filed against Appellee during 

the pendency of the underlying foreclosure action, Frempong asserted his 

companies had an interest in a junior mortgage on the Property. Manu v. 

Nat’l City Bank of Indiana, 321 F. App’x 173, 175-76 (3d Cir. 2009) 

(“Manu I”). The company filed for bankruptcy protection, and Frempong 

sought to intervene in the federal action and delay the Sheriff’s sale. Id. 

The Third Circuit wrote: 

Thus, it appears that the companies’ alleged interests in the 

property were created in bad faith in order to frustrate the 

scheduled sheriff’s sales. In fact, the United States Bankruptcy 

Court for the Eastern District of Pennsylvania found that [the] 

bankruptcy petition was filed in bad faith. 

Id. at 176. The Third Circuit also noted that a 2001 injunction prohibited 

Frempong from filing new actions in District Court, and that Frempong could 

(Footnote Continued Next Page)
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Undaunted by our prior chastisement, Frempong has engaged in 

similar tactics in the instant matter, albeit with his wife as the party of 

record in the underlying foreclosure action. 

In summary, the record confirms that Appellee has paramount title to 

the Property and is out of possession. No genuine issue of material fact 

exists in this ejectment action. We therefore affirm the trial court’s order 

entering summary judgment in Appellee’s favor. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/2015

(Footnote Continued) _______________________

not circumvent that action by filing a petition to intervene in an action 

between Manu and National City Bank. Id. Again, we recognize the federal 

opinion is not precedential. We cite it only to explain the lengthy history of 

the underlying foreclosure action.